S. T. DESAI, N. M. MIABHOY, MIABHOY, J.

( 1 ) THE petitioner Ramjibhai Ukabhai Parmar has obtained a rule calling upon the respondent No. 2 to show cause why a writ of certiorari should not issue to remove into this Court an order made by it allowing an appeal preferred by respondent No. 1 on the ground that it had violated a fundamental of principle of natural justice. Respondent No. 1 Manilal Purshottam Solanki is a Councilor of the Baroda Borough Municipality thereafter called the Municipality) Petitioner is a resident of Baroda and claims to be a voter in the ward from which respondent No. 1 has been elected as a councilor. Petitioners case was that respondent No. 1 had incurred a disqualification to be a member of the Municipality under section 12 sub-sec. (2) clause (b) of the Bombay Municipal Boroughs Act 1925 (hereafter called the Act) and has thus become disabled from continuing as a councilor of the Municipality. Section 12 sub-section (2) clause (b) enacts inter alia that no person who has directly or indirectly 9 by himself or his partner any share or any interest in any employment with a Municipality shall be a councilor of such Municipality. Section 28 sub-section (2) of the Act mentions the authority who is competent to decide whether disqualification has been incurred by a Municipal councilor or not and also prescribes the procedure which is to be followed in any enquiry instituted for the purpose. The collector has given to the power to decide such a question and sub-section (2) states that the Collector may give his decision either on an application made to him by any person or on his own motion. The case of the petitioner was that though respondent No. 1 had given an ostensible divorce to one Bai Harkor in fact Bai-Harkor was still his wife. It is an admitted fact that Bai Harkor was employed by the Municipality as a Safai Kamdar in Babajipura Ward of the Municipality. Petitioner alleged that Bai Harkor and respondent No. 1 resided and messed together and that the income which Bai Harkor derived by way of salary from the Municipality was the sole source of maintenance of respondent No. 1 and his family. Petitioner also alleged that Bai Harkor had borrowed certain loans from an institution which was run by the Municipality and that one of the loans was taken by respondent No. 1 for reconstructing and repairing a certain house belonging to him. Petitioner also alleged that respondent No. 1 had taken part of procuring the loans for Bai Harkor and that some of the loans were granted in contravention of the relevant rules of the institution run by the Municipality. Acting on these allegations the Collector of Baroda decided to issue a notice against respondent No. 1 to show cause why be should not be disqualified from acting as a Municipal councilor and why a declaration should not be made that a vacancy had arisen. Respondent No. 1 appeared before the Collector and contested the petition. He denied all the important allegations made by petitioner in his application to the Collector. The Collector held an enquiry and though he found some of the important allegations not proved he came to the conclusion on the basis of some facts which he held to have been proved that respondent No. 1 was interested in the employment of Bai Harkor by the Municipality. The Collector held that the petitioner had incurred the disqualification mentioned in sec. 12 sub-sec. (2) clause (b) and therefore was disabled from acting a Municipal councilor under sec. 28 sub-sec. (2) of the Act. On these findings he declared that the seat of respondent No. 1 had become vacant and that respondent No. 1 was disabled from sitting as a member of the Municipality. Aggrieved by this order respondent No. 1 preferred an appeal to the State of Bombay which figures as respondent No. 2 in this petition. A copy of the memo of Appeal was not on the record of the present proceedings. Such a copy was produced by respondent No. 1 at the time of the hearing and

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